Hernandez v. No Named Defendant

Filing 18

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 12/18/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02852-GPG
STEVEN JAMES HERNANDEZ,
Plaintiff,
v.
JOHN SUTHERS, Attorney General,
RICK RAEMISCH, D.O.C. Executive Director, and
JOHN DOW, District Attorney, Denver,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Steven James Hernandez, is detained at the Denver County Jail. He
initiated this action by submitting a Letter to the Court (ECF No. 1), in which he asserted
that the Colorado Department of Corrections (CDOC) is improperly deducting earned
and good time credits from his parole eligibility date, instead of from his discharge date.
On October 20, 2014, Magistrate Judge Boyd N. Boland entered an order
directing Plaintiff to file a Prisoner Complaint or an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241. (ECF No. 3). Mr. Hernandez filed both a
Prisoner Complaint and a § 2241 Application on December 1, 2014. (ECF Nos. 12,
13).
Plaintiff’s allegations in the Prisoner Complaint are confusing and fail to comply
with the requirements of Fed. R. Civ. P. 8. The twin purposes of a complaint are to give
the opposing parties fair notice of the basis for the claims against them so that they
may respond and to allow the court to conclude that the allegations, if proven, show

that the plaintiff is entitled to relief. See Monument Builders of Greater Kansas City, Inc.
v. American Cemetery Ass'n of Kansas, 891 F.2d 1473, 1480 (10th Cir.1989). T he
requirements of Fed.R.Civ.P. 8 are designed to meet these purposes. See TV
Communications Network, Inc. v. ESPN, Inc., 767 F.Supp. 1062, 1069 (D.Colo.1991),
aff'd, 964 F.2d 1022 (10th Cir.1992).
Specifically, Rule 8(a) requires that a complaint “contain (1) a short and plain
statement of the grounds for the court's jurisdiction, . . . (2) a short and plain statem ent
of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief
sought . . . .” The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1) which provides
that “[e]ach allegation must be simple, concise, and direct.” Taken together, Rules 8(a)
and (d)(1) underscore the emphasis placed on clarity and brevity by the federal
pleading rules. Prolix, vague, or unintelligible pleadings violate the requirements of
Rule 8.
In order for Mr. Hernandez “to state a claim in federal court, a complaint must
explain what each defendant did to him or her; when the defendant did it; how the
defendant's action harmed him or her; and, what specific legal right the plaintiff believes
the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1164 (10th Cir. 2007).
The allegations of the Prisoner Complaint do not provide adequate notice of the
basis of Plaintiff’s constitutional claims. By contrast, in his § 2241 Application (ECF No.
13), Mr. Hernandez alleges that the CDOC has failed to apply awarded good time
credits toward his Mandatory Release Date (MRD), which has resulted in Plaintiff

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serving prison time beyond his MRD, and parole time beyond his Statutory Discharge
Date (SDD), in violation of the law. Mr. Hernandez states that he saw the Colorado
Parole Board several times between July 14, 2013 and July 14, 2014, but on each
occasion the MRD calculated by the CDOC did not reflect his awarded good time
credits. Mr. Hernandez argues that once an inmate has earned good time or earned
time credits, the credits must be applied to the inmate’s MRD. He challenges the
CDOC’s policy that it has discretion whether or not to apply awarded time to an
inmate’s MRD. Plaintiff alleges that he should have been given an MRD of July 14,
2013. He seeks both injunctive and monetary relief
Plaintiff cites Ankeney v. Raemisch, No. 12CA1930 (Colo. App. Aug. 22, 2013),
in support of his allegations. In Ankeney, the Colorado Court of Appeals held that a
Colorado inmate who is subject to a mandatory parole scheme is entitled to application
of good time and earned time credits in calculating the mandatory release date. (See
Ankeny, No. 12CAS1930, attached as an exhibit to the Complaint in Ankeney v. State
of Colorado, et al., No. 14-cv-0007-MSK-KMT). To the extent Mr. Hernandez is raising
a challenge to the calculation of his MRD based on the CDOC’s failure to award earned
good time or earned time credits, he must assert specific facts to support his claims in
an amended Prisoner Complaint, pursuant to 42 U.S.C. § 1983. Although Mr.
Hernandez alleges some relevant facts in the § 2241 Application, as discussed above,
he must raise his allegations in an amended Prisoner Complaint.
The § 2241 application also appears to challenge the CDOC’s computation of
Plaintiff’s parole eligibility date (PED) under Nowak v. Suthers, 320 P.3d 340 (Colo.

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2014), which requires the DOC to aggregate consecutive sentences when computing
an offender’s PED. If Mr. Hernandez intends to pursue this claim in the instant action,
he must allege the relevant facts in his amended Prisoner Complaint. Mr. Hernandez is
reminded that he cannot proceed with a civil rights complaint and a § 2241 application
in the same proceeding. Accordingly, it is
ORDERED that Plaintiff, Steven James Hernandez, file within thirty (30) days
from the date of this order, an amended complaint that complies with the directives in
this order, and complies with Fed. R. Civ. P. 8. It is
FURTHER ORDERED that Mr. Hernandez shall obtain the court-approved form
for filing a Prisoner Complaint, with the assistance of his case manager or the facility’s
legal assistant, along with the applicable instructions, at www.cod.uscourts.gov.
Plaintiff shall use the form in filing his amended complaint. It is
FURTHER ORDERED that, if Hernandez fails to file an amended complaint that
complies with this order within the time allowed, some or all of this action may be
dismissed without further notice.
DATED December 18, 2014, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher

United States Magistrate Judge

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